The unique nature of violence between intimates presents unique challenges to prosecutors of domestic violence. In many instances, victims of domestic violence are unable or unwilling to testify. (1) As a result, much of the important evidence available against the accused is hearsay, often statements made by the victim at the time of the incident, raising issues of confrontation under the Sixth Amendment of the United States Constitution. (2) While the recent United States Supreme Court decision, Davis v. Washington, handed down in June of 2006, raised some cause for concern about the continued success of domestic violence prosecution, it also provided guidance for prosecutors facing critical issues of confrontation. (3) For purposes of battling domestic violence through prosecution, the Davis decision will force prosecutors to re-focus efforts and re-shape strategies. This Note examines the progression of Confrontation Clause jurisprudence from Ohio v. Roberts (4) to Crawford v. Washington, (5) to the recent Supreme Court decision in Davis. In particular, this Note will focus on the effect of Davis and its predecessors on the prosecution of domestic violence. Part I discusses the problems involved in the prosecution of domestic violence prior to the Crawford decision, namely the impact of the Confrontation Clause and the emergence of evidence-based prosecution. Part II details the Crawford decision and its influence on the prosecution of domestic violence. Part III carefully examines Davis, its newly articulated standard, and the factual contexts of the dual-decision. Part IV compares the application of the Davis standard in domestic violence cases around the country. Finally, Part V discusses the effect of Davis on the future of domestic violence prosecution and outlines potential solutions for the continued success of such prosecution.
II. PROBLEMS IN PROSECUTION
Victims of domestic violence are more likely than victims of other violent crime "to recant or refuse to cooperate" in prosecutorial efforts. (6) Some attribute these recants and refusals to the unique aspects of domestic violence. "Domestic violence is a pattern of coercive behavior that includes the physical, sexual, economic, emotional, and psychological abuse of one person by another." (7) Violence between intimates has been identified as a cyclical display of this abusive behavior. (8) Generally, abusive relationships cycle through three stages. (9) First, the "tension-building" stage, where the batterer is controlling of, and verbally abusive toward the victim, exerting power over all aspects of the victim's daily life and demeaning her independent existence and her self esteem. (10) Second, the "violent" stage, where the batterer engages in physically abusive behavior with varying levels of severity. (11) Finally, the "honeymoon" stage, where the batterer "engages in loving contrition" apologizing to the victim for his violent behavior and assuring his continued love and affection. (12) It is the cyclical nature of the abuse that creates the power dynamic between the batterer and the victim, resulting in an endless cycle of domination and control of batterer over victim. (13) Because a victim becomes the expert in reading the signs of her batterer's violence, subtle cues which would not signal a threat to the everyday observer are critical warning signs to a victim that violence is fast approaching. (15) For a victim of domestic violence, there is often no end and no escape, and the emergency is ongoing and unavoidable. (15) Commentators have identified various reasons for the recants and refusals of victims in the prosecution of domestic violence, including fear of reprisal or retaliation by the batterer, intimidation and threat by the batterer, financial dependence of the victim on the batterer, continued emotional attachment to and reuniting with the batterer, issues of custody and child support, fear that the victim or batterer will be deported, distrust of the legal system, and even "genuine belief' by the victim that no wrong was committed. …